“She’s a big problem” blared a tweet featuring a photograph of Supreme Court Justice Amy Coney Barrett. Given the opposition she faced from Democratic senators and the broader left during her confirmation hearings in 2020, one might suspect that the post came from a progressive critic. But the post, which has been liked more than 117,000 times, was one of many by supporters of President Donald Trump in response to Barrett’s vote not to lift an order by a federal judge directing the State Department and the U.S. Agency for International Development to pay out nearly $2 billion in foreign aid. She has also faced accusations that she was a “DEI hire” and calls to step down.
Popular though such takes may be, they not only mischaracterize Justice Barrett’s record but betray a more fundamental misunderstanding of the job of a Supreme Court justice. Reasonable minds can disagree about the correct action the Supreme Court should have taken here. Indeed, Justice Samuel Alito wrote an impassioned dissent arguing that the order should have been lifted.
A careful look at Justice Barrett’s overall judicial record suggests that criticism that she broadly votes with the left is… at best peculiar. She voted to overturn Roe v. Wade and its constitutional protections for abortion; for stricter constraints on affirmative action in university admissions; for strengthened gun rights; and for First Amendment protection for website designers who have conscience objections to participating in gay weddings. She also voted to end judicial bias toward federal regulatory agencies, said that Congress did not grant the Environmental Protection Agency broad authority to enact its ambitious Clean Power Plan, and elected for a common-sense interpretation of the Clean Water Act that allows property owners to build.
Nor has she been reflexively anti-Trump. She voted that Trump was not disqualified from running for office under Section 3 of the 14th Amendment and that, as president, he has immunity from prosecution for official acts.
Of course, not everyone will agree with her votes in every case. I know what it’s like to believe deeply that the court made the wrong call. I was part of the litigation team that brought Coalition for TJ v. Fairfax County School Board to the high court, first on a motion for emergency relief and then for a decision on the merits. Coalition for TJ was a constitutional challenge to the restructuring of admissions at a prominent magnet school in Fairfax County, Virginia to disfavor Asian-American students. Though other members of the court voted to grant Coalition for TJ’s emergency motion and petition, Justice Barrett was not among them. Both the emergency motion and petition were ultimately denied.
A few months later, some of my Pacific Legal Foundation colleagues brought a similar case, Boston Parent Coalition v. Boston School Committee, to the Supreme Court. Again, a school board charged with managing admissions at prestigious magnet schools reengineered admissions criteria to produce their desired racial outcomes. As in Fairfax County, the Boston School Committee did this indirectly rather than directly. Justices Samuel Alito and Clarence Thomas voted to take up the case, and Justice Neil Gorsuch wrote in a concurring statement that he did not only because post-lawsuit changes to Boston’s admissions policies “greatly diminished” the need for the court’s review. Once again, however, Justice Barrett was not among the justices voting to take up the case.
These decisions are disappointing. Because of them, some Asian-American and white students will be shut out of their dream high schools for no reason other than their skin color. Still, I do not conclude that the court failed to take up the cases because Justice Barrett secretly longs for the favor of the political left. She had, after all, voted in a landmark case just a year earlier that Harvard and the University of North Carolina’s affirmative action policies that discriminated against Asian American students were unconstitutional. There are myriad reasons other than agreeing with a lower court’s ruling that a justice may vote against granting certiorari in a particular case, and Barrett may well have been motivated by one or more of them in Coalition for TJ and Boston Parent Coalition.
Rather, Barrett’s overall voting record suggests that she decides cases based on what she understands the Constitution and relevant statutes to compel, rather than out of allegiance to her supposed political team. Sometimes (as with the long list of cases cited above), that’s led her to vote for an outcome that’s generally seen as conservative. In other cases (as with the USAID case that touched off this whole fracas), it’s led her to vote for what’s considered the “liberal” side.
In our constitutional system, this is exactly what judges are supposed to do. Many courthouses feature statues of Lady Justice. Traditionally, she is shown blindfolded, symbolizing the judge’s commitment to deciding cases without showing favoritism toward either side. There is no exception to this longstanding norm that encourages a justice to take off her blindfold and wink at the face of the president who appointed her. Flyspeck individual decisions as you will, but Barrett deserves praise and not condemnation for hewing to the ideal of what independent judges are supposed to do under constitutional separation of powers.
Alas, the recent attacks on Barrett—as well as threats by House Republicans to impeach lower court judges for ruling against the administration—represent the worst kind of bipartisanship. The left has spent the last several years threatening to impeach justices they dislike over dubious ethics allegations. They’ve voted to withhold security resources from justices despite increasing and direct threats to their safety. And they’ve threatened to “pack the court,” not because they believe that a 13-justice court is better at deciding cases than one with nine, but because they are unhappy with the outcome of certain high profile cases and think adding more justices would garner different outcomes. (One United States senator even filed an amicus brief that essentially made this last threat explicit.)
The recent embrace by some conservatives of the left’s playbook to cow the court into submission ought to trouble everyone who values the Constitution.
All Americans, regardless of their political views, benefit when judicial independence is respected. And we all stand to lose profoundly if both sides progressively escalate attacks on the court to avoid losing a game of chicken.
Our constitutional system of separation of powers has made America the extraordinary place it is. As Justice Kavanaugh has said, the “independent judiciary is the crown jewel of our constitutional republic.” Partisans court calamity by undermining that independence in the hope of short-term political gain.
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